1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-11-1995

McDaniels v Flick

Precedential or Non-Precedential:

Docket 94-1838

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"McDaniels v Flick" (1995). 1995 Decisions. Paper 186.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/186
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 Nos. 94-1838 and 94-1935 

 

 FRANK MCDANIELS 

v. 

 JAMES R. FLICK; JOHN M. FITZPATRICK; 

 FRANK C. HESS, JR.; JAMES P. GAFFNEY; 

 JOSEPH W. GATTINELLA; NANCY J. GILOLEY; 

 DEE M. GRANT; SHARON KREITZBERG; 

 JAMES J. MCCANN; BARBARA W. MOSS; 

 ALBERT T. OLENZAK; LUTHER H. SMITH; 

 ROBERT E. WELSH; DELAWARE COUNTY 

 COMMUNITY COLLEGE 

 Delaware County Community College, 

 Appellant

 

 FRANK MCDANIELS 

 Appellant

v. 

 JAMES R. FLICK; JOHN M. FITZPATRICK; 

 FRANK C. HESS, JR.; JAMES P. GAFFNEY; 

 JOSEPH W. GATTINELLA; NANCY J. GILOLEY; 

 DEE M. GRANT; SHARON KREITZBERG; JAMES J. 

 MCCANN; BARBARA W. MOSS; ALBERT T. OLENZAK; 

 LUTHER H. SMITH; ROBERT E. WELSH; 

 DELAWARE COUNTY COMMUNITY COLLEGE 

 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Civil No. 92-00932) 

 

 Argued May 24, 1995 

 BEFORE: GREENBERG, ROTH, and ALDISERT, Circuit Judges

 (Filed: July 11, 1995) 
 

 Arlin M. Adams 

 Ralph G. Wellington (argued) 

 Nancy Winkelman 

 Schnader, Harrison, Segal & 

 Lewis 

 1600 Market Street 

 Suite 3600 

 Philadelphia, PA 19103 

 D. Barry Gibbons 

 Gibbons, Buckley, Smith, Palmer 

 & Proud 

 P.O. Box 229 

 Media, PA 19063 

 Attorneys for appellant-

 appellee Delaware County

 Community College and the 

 

individual appellees

 Richard A. Ash 

 Cletus P. Lyman (argued) 

 Michael S. Fellner 

 Lyman & Ash 

 1612 Latimer Street 

 Philadelphia, PA 19103 

 Attorneys for appellee-

 appellant Frank McDaniels

 

 OPINION OF THE COURT 

 

GREENBERG, Circuit Judge. 

 I. PROCEDURAL BACKGROUND

 This matter is before this court on appeal by Delaware 

County Community College from orders denying its motions for 

judgment as a matter of law and on a cross-appeal by Frank 

McDaniels from orders dismissing the trustees of the college as 
defendants and denying him a new trial on non-economic damages. 

The case arose as a result of McDaniels' discharge as a tenured 

professor at the college. 

 We describe the unusual procedural background of the 

case at length.1 On February 13, 1992, McDaniels filed this 

action in the district court under 42 U.S.C. § 1983 against the 

college's Board of Trustees, individually and in their official 

capacity, and against the college. He charged that the 

defendants, in terminating his employment by reason of certain 

serious charges of misconduct made against him by a student at 

the college, violated his procedural due process rights under the 

United States Constitution. The student later was identified as 

John Federici. 

 In March 1992, the college filed a motion for summary 

judgment, which the district court denied without opinion. The 

college then unsuccessfully moved for reconsideration. In 

denying that motion, the district court explained that there was 

an issue of material fact as to whether McDaniels received notice 

of the charges or the purpose of the pretermination meeting 

before the meeting and whether he was informed of the specific 

accusations during the meeting. 

 

1. The college also appeals from the denial of pretrial motions 

for summary judgment. In response McDaniels contends that in 

view of the verdict at the trial we cannot entertain the appeal 

from the denial of these motions. We do not address this point, 

however, for our conclusion that the college was entitled to 

judgment as a matter of law renders it moot. 
 After discovery, both sides moved for summary judgment. 

The court granted partial summary judgment on liability to 

McDaniels and thus denied the college's motion. On January 27, 

1994, it started a jury trial on damages but, after hearing 

McDaniels' testimony, the court determined that there was a 

genuine issue of fact as to whether there had been a procedural 

due process violation. In a subsequent memorandum opinion 

explaining its reasoning, the court noted that actions taken 

after the pretermination meeting might show that McDaniels was 

aware of the specific charges and that he had an opportunity to 

respond to them. Consequently, the court concluded that it had 

granted McDaniels partial summary judgment improvidently. The 

court therefore offered McDaniels a choice between proceeding 

with the trial and proving liability as well as damages, or 

having the court declare a mistrial. McDaniels elected to have 

the court declare a mistrial. In a subsequent written opinion 

explaining why it had reached the foregoing conclusions, the 

court included a footnote stating that the trustees had been 

dismissed as defendants "sua sponte and without objection" 

because they had nothing to do with the pretermination events 

leading up to McDaniels' discharge. 

 The court divided the second trial into three separate 

sub-trials, which we shall call phases, with the first phase 

focusing on liability. At the close of McDaniel's case on this 

phase, which was also the close of all of the evidence as the 

college did not call any witnesses, both McDaniels and the 

college unsuccessfully moved for judgment as a matter of law 
under Fed. R. Civ. P. 50(a). Then in response to specific 

questions, the jury returned a verdict that: (1) the college 

adequately notified McDaniels that the November 27, 1991 meeting 

was a pretermination hearing on Federici's sexual harassment 

charges; (2) the college informed McDaniels of the substance of 

the case against him during that meeting; but (3) McDaniels was 

not given a meaningful opportunity to respond and tell his side 

of the story. App. 1214-15. In view of the third finding, the 

college could be liable. In the second phase the jury determined 

that if McDaniels had been given an adequate opportunity to 

respond, the college would not have terminated his employment, 

presuming that it would have acted fairly and reasonably. App. 

2171. Based on this verdict, the court entered an order 

reinstating McDaniels on the faculty and awarding him $134,081 in 

lost wages. Finally, in the third phase the jury found that 

McDaniels was not entitled to damages for non-economic harm. The 

court, nevertheless, awarded him one dollar on that claim for 

nominal damages. App. 2333. 

 The college then moved for judgment as a matter of law 

under Fed. R. Civ. P. 50(b). McDaniels filed a "conditional" 

post-trial motion for a new trial on the issue of damages. In 

opposing the college's motion, McDaniels contended that it was 

estopped from moving for judgment as a matter of law because the 

college's attorney in his closing argument at the third phase led 

the jury to believe that the college agreed to "make peace" with 

McDaniels and make him whole. The court, though not estopping 

the college, denied the post-trial motions on August 22, 1994. 
The college then filed a notice of appeal, and McDaniels filed a 

notice of cross-appeal. 

 Thereafter, McDaniels moved in this court to dismiss 

the appeal and cross-appeal on the basis of the statements the 

college's attorney made during closing argument at the third 

phase. Essentially he contends, as he did in the district court, 

that the statements estop the college from seeking post-trial 

remedies. After he filed that motion in this court, the district 

court issued a memorandum opinion explaining the reason for its 

disposition of the post-trial motions, including why it had 

rejected McDaniels' judicial estoppel argument. We now deny the 

motion to dismiss the appeal and cross-appeal as we agree with 

the district court that the college's attorney's comments should 

not estop it from pursuing post-trial remedies. 

 On appeal, the college argues that the district court 

should have granted its motions for judgment as a matter of law. 

McDaniels cross-appeals from the district court's dismissal of 

his case against the individual defendants and from the denial of 

his post-trial motion for a new trial on non-economic damages. 

We will reverse on the college's appeal from the denial of its 

post-trial motion for judgment, will affirm on McDaniels' crossappeal challenging the dismissal of the trustees, and will not 

reach McDaniels' argument seeking a new trial on non-economic 

damages. 

 II. FACTUAL BACKGROUND
 We set forth the facts, many of which are not in 

dispute, viewing them in a light most favorable to McDaniels.2 

McDaniels was a tenured professor at the college which is a 

public institution in Delaware County, Pennsylvania. In 1990, 

the college received complaints from two male students that 

McDaniels sexually harassed them. App. 1075-80. After 

investigating the reports, the college sent McDaniels a letter 

informing him that he had violated the school's sexual harassment 

policy. App. 1029-30. The letter warned McDaniels that 

"reoccurrence of such incidents will result in serious 

disciplinary action including termination of employment." App. 

1030. McDaniels responded to these charges in writing and signed 

the college's letter to acknowledge that he had reviewed its 

contents. App. 1030-31, 1075-80. 

 In the summer of 1991, McDaniels taught a marketing 

class at the college. John Federici, who was one of the students 

in the class, had trouble with the course work and sought help 

from McDaniels. Due to various problems, including a final term 

paper that Federici handed in late, McDaniels gave him a "D" for 

the course.3 App. 938. Federici needed at least a "C" in the 

course to transfer the credit for it toward a nearly completed 

degree from Pennsylvania State University. App. 746. According 

 

2. We are generous to McDaniels in so viewing the facts because 

the college was the verdict winner at the first phase except on 

the third issue. 

3. McDaniels first gave Federici a grade of "Incomplete." App. 

935. 
to McDaniels, Federici became irate and threatened to get him. 

App. 1017. McDaniels reported the incident to Assistant Dean 

Henry Jackson, McDaniels' supervisor at the time. App. 1017. 

 Federici also approached Jackson and complained that he 

disagreed with McDaniels' grading of his term paper. App. 934-

36. Jackson contacted McDaniels after learning that Federici 

already had confronted McDaniels about the grade. App. 936-38. 

McDaniels told him that the term paper was not well done. App. 

938. Jackson did not read the term paper. App. 947-49. Jackson 

then told McDaniels that Federici apparently misunderstood and 

that Jackson would contact him and explain the situation to him. 

App. 938-39. Jackson then called Federici, but when he could not 

make Federici understand McDaniels' position, he told Federici to 

contact McDaniels directly. App. 939. Federici refused, saying 

something to the effect of "I can't do that." App. 939. When 

Jackson pressed him, Federici said that he needed to talk to 

Jackson about another matter. App. 939-40. Federici told him 

that McDaniels "always wanted to counsel [him]" and "always 

wanted to see [him.]" App. 940. Federici also told him that 

McDaniels talked to him about "tough love." App. 940-41. 

Jackson then asked if he was talking about sexual harassment. 

App. 941. Federici said he was and Jackson told him to discuss 

the matter with James Bryan, the college's Director of Personnel 

Services. App. 941. 

 On November 18, 1991, Federici met with Bryan. App. 

736, 739. Federici told Bryan that he needed credits to transfer 

to Pennsylvania State University for his degree; he had problems 
with McDaniels' class; he was seeing a counselor regarding 

anxiety and stress problems; and he had been involved in various 

incidents with McDaniels. App. 736-47. Bryan took notes of the 

conversation. App. 739. Bryan asked Federici to make a written 

statement regarding these allegations. App. 754. When Federici 

said that he would need help doing so, Bryan offered to compile 

his notes into a written statement for Federici to sign. App. 

754. After their talk, Bryan composed a summary from his notes 

which Federici later reviewed and signed. App. 760-61. The 

summary, in relevant part, reads as follow: 

 While in the library studying [John 

Federici] fell asleep & awoke to see [Frank 

McDaniels] who was massaging John's neck. 

John was taken by surprise & felt very 

strange that this would have happened. After 

that incident, [McDaniels] came into the 

library more & more as if he was looking for 

John. 

 John was in the library on another 

occasion with his friend Tom & [McDaniels] 

came in to talk to them. [McDaniels] seemed 

to keep looking at the 'lower half' of John's 

body while he spoke. [McDaniels] did not 

make eye contact with John but continued to 

stare at his lower body.4

 John made an appointment to speak [with 

McDaniels] in [McDaniels'] office about the 

added class work to improve his grade. 

[McDaniels] repeatedly said he wanted to help 

John & counsel him. [McDaniels] asked if 

John had heard of tough love & John said no. 

With this, [McDaniels] proceed (sic) to say 

that he would help him & 'If I need to I will 

 

4. Bryan testified that Federici also told him that after 

McDaniels left, Federici asked Tom if he noticed the way 

McDaniels was staring at him, to which Tom responded negatively 

and laughed. App. 781. 
hug you, beat the crap out of you or put my 

penis in your mouth.' [McDaniels] reached 

over & put both of his hands on John's face & 

seemed to be about to cry & said, 'I really 

want to help you.' John backed away and was 

stunned to hear this. 

 Summer I ended & John got an 

'Incomplete' for his marketing course. He 

reluctantly called [McDaniels] at [the 

college] to attempt to get the assignments 

necessary to get a grade for the course. 

[McDaniels] returned his call & made some 

'sexual innuendo' remarks. [McDaniels] made 

an appointment to see John on campus. John 

was reluctant but needed to get an assignment 

to remove the 'Incomplete.' 

 At the appointment [McDaniels] discussed 

make-up work & repeating the final exam but 

then went into another description of the 

tough love thing with another explicit 

reference to sexual matters. [McDaniels] 

said to come back to his office later if he 

wanted to have help on matters external to 

class activities but if he did not return, 

[McDaniels] would know John didn't want help 

in these personal matters. [McDaniels] also 

said John should not discuss this with anyone 

since he could loose (sic) his job. 

[McDaniels] said he would 'get him' if he 

mentioned their conversations to anyone. 

[McDaniels] left the clear impression that 

the two of them could go somewhere off-campus 

'in private' to work out these personal 

problems (sexual overtones were clear). 

App. 258-61 (testified to at app. 763). 

 After his meeting with Federici, Bryan verified that 

Federici was a student in McDaniels' marketing course. He then 

alerted several officials at the college about the matter. App. 

768-71. In particular Bryan discussed the situation with Dean 

Thomas McNicholas and asked Dr. Lois Ann Craig to determine 
whether Federici had any record of unusual behavior. App. 771-

72. 

 On November 27, 1991, Bryan contacted McDaniels and 

told him to meet him in Bryan's office at 2:30 p.m. that 

afternoon and to bring along his grade book. App. 787-88. Prior 

to the meeting, McDaniels met Bryan and inquired about the reason 

for it. App. 788-90. Bryan told him only that it was about a 

"student problem" and he gave him no other information about the 

meeting. App. 788-90; 983. The meeting was held as scheduled 

with McNicholas, Bryan, and McDaniels present. 

 At the start of the meeting, Bryan told McDaniels that 

a student had lodged a sexual harassment complaint against him 

and that he and McNicholas would recommend McDaniels' 

termination. App. 791, 982-83. McDaniels testified that upon 

hearing Bryan's opening statement, he was "shocked, dismayed, . . 

. thrown offguard." App. 983. Bryan testified that he then told 

McDaniels "that the purpose of the meeting was to understand what 

the charge was, to have an opportunity for me to relay to him 

what the charges were specifically and for him to have a chance 

to respond." App. 791. McNicholas, the only other person at 

this meeting, confirmed this statement. App. 915-16. McDaniels 

testified that he "did not comprehend" that Bryan said explicitly 

that it was to be a "pretermination hearing." App. 1072. 

McDaniels explained, "Well, if they did say it, they said it in 

the same sentence whereby they said they were recommending my 

termination to the board of trustees. If they did say it, they 

had blown my mind so bad at that point, they had disorganized me 
-- disoriented me so much that I didn't remember them saying it, 

if they did say it." App. 1073. Bryan and McNicholas also 

testified that Bryan told McDaniels that he could adjourn the 

meeting at any time. App. 862, 916. 

 A few minutes into the meeting, Bryan informed 

McDaniels that Federici filed the complaint. App. 792-93, 851, 

913-14, 1014. McDaniels became very upset upon learning this and 

left the room. App. 851, 914, 1014-18. After trying to collect 

himself, he returned and "was a little bit better," but was 

"still in a total state of shock" and "[didn't] even know what 

[he] said." App. 1018. McDaniels told them that Federici had 

threatened earlier to "get" him. App. 794, 853. McDaniels told 

Bryan and McNicholas that Federici had emotional problems, 

Federici's parents were aware of this, and McDaniels had made 

Dean Jackson aware of this as well. App. 794-95, 859-60, 918. 

Bryan and McNicholas recalled McDaniels as having said that he 

knew Federici's parents and had talked to them. App. 794, 859. 

McDaniels testified, however, that "If I did say that, I was in 

panic," and that he did not know them, and meant to say that they 

must have known that Federici had emotional problems. App. 1025-

26. Bryan and McNicholas agreed to talk to Jackson and 

Federici's mother. App. 865. Bryan and McNicholas also 

testified that McDaniels asked them if he could save his job if 

he agreed to seek counselling. App. 858. 

 During the pretermination hearing, Bryan discussed 

Federici's allegations but he did not read or show the written 

summary to McDaniels. App. 802, 1018. It is unclear whether 
Bryan described Federici's allegations in a direct manner. 

However, Bryan asked McDaniels several questions relating to 

them. App. 1019-21. Bryan asked whether McDaniels touched 

Federici's neck or face in the library. App. 1019. McDaniels 

responded that he had not, but might have, and recalled an 

incident in which Federici was sitting when he walked into the 

library and saw him. App. 917, 1019-20. Bryan asked whether 

McDaniels had stared at the lower part of Federici's body in the 

library, in the presence of another student. App. 1020. 

McDaniels denied this. App. 1020. Bryan also asked whether 

McDaniels had talked to Federici about "tough love." App. 854, 

915, 1020. McDaniels said that Federici initiated that topic. 

App. 1020. Bryan testified that he also asked McDaniels about 

the sexually explicit remark quoted by Federici and about the 

alleged warning by McDaniels for Federici to keep quiet about 

their conversations. App. 854, 856. McDaniels, however, denied 

that Bryan ever mentioned these two points. Bryan also brought 

to McDaniels' attention his previous reprimand for sexual 

harassment, showing him the warning letter. App. 856, 1029. 

McDaniels told Bryan and McNicholas that the sexual harassment 

allegations regarding Federici were not true. 

 Bryan and McNicholas testified that Bryan told 

McDaniels that he should contact Bryan if he thought of any other 

matters, and that he had available various options to deal with 

these charges under his collective bargaining agreement with the 

college, the college's sexual harassment policy, and the 

Pennsylvania Local Agency Law, including an appeal to the 
president of the college. App. 861-63, 915. McDaniels did not 

recall any of this. App. 1091. 

 As agreed, Bryan contacted Federici's parents. In 

particular Bryan had a telephone conversation with Federici's 

mother, who told him that she did not remember talking to 

McDaniels. App. 797. McNicholas met with Jackson and asked 

whether McDaniels had told him that Federici was "off the wall" 

or "crazy" and Jackson answered "no." App. 920. 

 Subsequently, Bryan sent McDaniels a letter, dated 

December 4, 1991, informing him that Bryan had investigated the 

matter and would recommend that the Board of Trustees terminate 

McDaniels' employment for sexual harassment. App. 804. The 

letter also advised McDaniels of his post-termination rights: 

 As I mentioned during the pre-termination 

meeting last Wednesday, you may want to have 

the [Board of Trustees'] action heard through 

the grievance procedure as provided under the 

terms of the collective bargaining agreement 

or you may elect to have a hearing before a 

committee of the Board of Trustees. 

App. 246 (testified to at app. 803-04). Bryan sent McDaniels 

another letter, dated December 9, 1991, which said briefly: 

 Consistent with procedures in Regulation 

63.03, page 12 of the College Policy Manual, 

I am writing to inform you that you may 

exercise your right to request a further 

review and investigation by the President of 

the College or his designee on the matter of 

the sexual harassment complaint lodged 

against you. You have five (5) days to file 

this request. 

 Please phone me should you have any 

questions on this matter. 
App. 248 (testified to at app. 804, 1045). 

 McDaniels wrote to the college's president, Richard D. 

DeCosmo, on December 12, 1991, to request that DeCosmo 

investigate the sexual harassment charges. App. 1051. McDaniels 

indicated in the letter that he has "formally filed a grievance 

with the intent of going all the way through the grievance 

procedure (arbitration) & beyond to civil action to avoid 

termination." App. 165, 2352-53 (testified to at 1052-53). 

McDaniels testified, however, that at the time of the letter, he 

had not begun the grievance procedure but was only "looking into" 

it. App. 1093-94. McDaniels also wrote: 

 Enclosed is a chronologized transcript 

of my total contact with this student. I 

emplor (sic) you to thoroughly investigate 

his alligations (sic) personally & overturn 

the termination decision. . . . 

 . . . I would be most happy to visit 

you & go over cronology (sic) of contact with 

John Federici from first meeting to last 

confrontation spanning May 23, 1991 to 

October 22, 1991. Every single meeting was 

for class business only. 

 After receiving this letter, DeCosmo reviewed the 

documents relating to this matter, and met with Bryan, 

McNicholas, and Jackson to review their investigations and 

findings. App. 1126. On December 18, 1991, DeCosmo wrote the 

following to McDaniels: 

 I am satisfied that there has been a thorough 

review of the matter in question. I do not 

believe further review is necessary. The 

recommendation to terminate your employment 

for violation of the College's sexual 

harassment policy will be presented to the 
Board of Trustees at their meeting on 

December 18. 

App. 250 (testified to at app. 1102). 

 At the Board of Trustees' meeting on December 18, 1991, 

the Board voted unanimously to terminate McDaniels' employment. 

McDaniels did not appeal to or ask for a hearing by the Board of 

Trustees. Nor has he pursued the matter in state court. 

Instead, he began arbitration procedures as provided for by the 

collective bargaining agreement. Before the parties completed 

selection of the arbitrators, however, McDaniels filed this 

action. Consequently, the arbitration proceedings have been 

stayed pending its disposition. 

 III. JURISDICTION

 The district court had jurisdiction over this civil 

rights action pursuant to 28 U.S.C. § 1331 (federal question) and 

28 U.S.C. § 1343 (civil rights). We have jurisdiction under 28 

U.S.C. § 1291 over the final orders entered by the district 

court. 

 IV. DISCUSSION

 A. Judgment as a Matter of Law

 The college made a motion for judgment as a matter of 

law based on Fed. R. Civ. P. 50(a) at the close of McDaniels' 

case in the first phase, which was also at the close of all the 

evidence, and a motion for judgment as a matter of law under Fed. 

R. Civ. P. 50(b) after completion of all three phases. The 
district court denied both motions, and the college appeals from 

both denials. 

 We exercise plenary review over the district court's 

denial of the college's motions for judgment as a matter of law 

pursuant to Fed. R. Civ. P. 50(a) and 50(b). Lightning Lube, 

Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993), sets forth 

the standard we follow when considering a defendant's motion for 

judgment as a matter of law: 

 Such a motion should be granted only if, 

viewing the evidence in the light most 

favorable to the nonmovant and giving it the 

advantage of every fair and reasonable 

inference, there is insufficient evidence 

from which a jury reasonably could find 

liability. In determining whether the 

evidence is sufficient to sustain liability, 

the court may not weigh the evidence, 

determine the credibility of witnesses, or 

substitute its version of the facts for the 

jury's version. 

Id. (citations omitted). A review of the record leads us to 

conclude that the jury verdict to the extent unfavorable to the 

college at the first phase is not supported by legally sufficient 

evidence and that the college should have been granted a judgment 

as a matter of law. 

 The parties agree that the starting point of the 

resolution of this procedural due process dispute is Cleveland 

Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487 (1985). 

In Loudermill, two discharged school district employees sued 

their former employers for deprivation of liberty and property 

interests without due process in the pretermination procedures. 

The Supreme Court held that the district court erred in 
dismissing the complaints. The Court first confirmed that under 

applicable Ohio law, the plaintiffs had property rights in 

continued employment. Id. at 538-39, 105 S.Ct. at 1491. Then, 

in determining "what process is due," Morrissey v. Brewer, 408 

U.S. 471, 481, 92 S.Ct. 2593, 2600 (1972), the Loudermill Court 

began with the long-standing precept that "[a]n essential 

principle of due process is that a deprivation of life, liberty, 

or property 'be preceded by notice and opportunity for hearing 

appropriate to the nature of the case.'" Loudermill, 470 U.S. at 

542, 105 S.Ct. at 1493 (citing Mullane v. Central Hanover Bank & 

Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-57 (1950)). The 

Court reiterated the settled rule that due process "requires 

'some kind of a hearing' prior to the discharge of an employee 

who has a constitutionally protected property interest in his 

employment." Id. (citing Board of Regents of State Colleges v. 

Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705 (1972); Perry v. 

Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 2698 (1972)). The 

Court noted that one essential component of due process, was a 

pretermination opportunity to respond. Id. 

 Having said that, the Court went on to point out that 

"the pretermination 'hearing,' though necessary, need not be 

elaborate." Id. at 545, 105 S.Ct. at 1495. Rather, "'[t]he 

formality and procedural requisites for the hearing can vary, 

depending upon the importance of the interests involved and the 

nature of the subsequent proceedings.'" Id. (quoting Boddie v. 

Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786 (1971)). Thus, 

after balancing the interests of public employees and employers, 
the Court held that "[t]he tenured public employee is entitled to 

oral or written notice of the charges against him, an explanation 

of the employer's evidence, and an opportunity to present his 

side of the story." Id. at 546, 105 S.Ct. at 1495. The Court 

concluded that "all the process that is due is provided by a 

pretermination opportunity to respond, coupled with posttermination administrative procedures as provided by the Ohio 

statutes." Id. at 547-48, 105 S.Ct. at 1496. 

 The parties agree that under Loudermill McDaniels had a 

constitutionally protectible property interest in continued 

employment as a tenured professor at the college. Loudermill

therefore provides the guidelines for "what process is due." 

Morrissey v. Brewer, 408 U.S. at 481, 92 S.Ct. at 2600. The 

question then is whether the college satisfied its obligations 

under these guidelines. 

 After the closing of the first phase of the trial, the 

district court charged the jury in relevant part: 

 Being a tenured professor at a community 

college he was a public employee with a 

property interest in his job. The law is 

that such an employee is entitled to the 

notice of the charges against him, an 

explanation of the employer's evidence, and 

an opportunity to present his side of the 

story. And this entire process is known as a 

pre-termination hearing. 

 The notice may be written or oral, that 

is spoken. It need not be advance notice, 

that is a pre-hearing notification. In other 

words, the notice of the charges may be given 

at the hearing itself. The hearing can be 

informal . . . . It is not required to be a 

full hearing before the final decision maker. 
. . . 

 The employee need not be informed as to 

all of the evidence, but at least the 

substance of it. He must be given the 

opportunity to respond to the charges, and 

for that opportunity to be meaningful he must 

know the substance of the case that the 

employer has against him. This enables the 

employee to make any plausible arrangements 

that might prevent the termination. . . . 

 In deciding whether Mr. McDaniels was 

given the opportunity to respond, you may 

consider what you decide occurred at the 

meeting on November 27, 1991, and also what 

occurred thereafter, prior to his termination 

on December 18th. If you decide that under 

all the circumstances that Mr. McDaniels was 

substantially unable to respond, either at 

the meeting or before December 18, and that 

his inability to do so was caused by the 

conduct of the college's representatives, 

then it could not be said that he had the 

opportunity to respond to the charges. 

App. 1200-03. The jury found that the college, through Bryan, 

did notify McDaniels "that the meeting on November 27, 1991 was a 

pre-termination hearing based on the sexual harassment charges of 

John Federici;" at that meeting Bryan did inform McDaniels as to 

the substance of the case against him; but McDaniels was not 

given a meaningful opportunity to respond and tell his side of 

the story. App. 1214-15. 

 On appeal, the college does not quarrel with the 

foregoing charge. But McDaniels appears to argue that, as a 

tenured professor who had been teaching at the college for 20 

years, he deserved more protection than those set forth in 

Loudermill. We disagree. The Loudermill Court balanced the 

competing interests of the employer and the employee in deriving 
the pretermination requirements. In determining whether the 

Loudermill standard should apply here, we must consider the 

interests of McDaniels versus those of the college and the 

students. 

 It is true that McDaniels has a property interest in 

his continued employment and perhaps a liberty interest in 

clearing his reputation of sexual harassment charges. But 

McDaniels appears to argue that because he is a professor and has 

been at the college for 20 years, his property interest in 

continued employment is constitutionally greater than those held 

by the employees in Loudermill. Yet he has not offered any basis 

on which we could or should distinguish reasonably between the 

interest of a tenured employee who has worked 20 years and the 

interest of one who has worked only one year for the same 

employer and we can conceive of no principled way to distinguish 

between the two. Arguably, the interest in continued employment 

may be greater for younger employees who have started only 

recently because they have potentially more years of employment 

ahead. 

 McDaniels claims that "[u]nlike ordinary public 

employees, the rights of professors to teach, free from arbitrary 

discharge by administrators, implicates the societal value of 

academic freedom. Tenure is the pillar upon which academic 

freedom rests." Br. at 34. Although this assertion may be true, 

it is not material in this case. Inasmuch as the college did not 

discharge McDaniels in retaliation for his exercise of First 

Amendment rights, this case does not implicate free speech 
issues. Indeed, in his complaint McDaniels does not refer to the 

First Amendment. Rather, we are concerned with the minimum 

process due under the Constitution to protect property rights in 

public employment. 

 McDaniels also cites Skehan v. Board of Trustees of 

Bloomsburg State College, 669 F.2d 142, 152 (3d Cir.), cert. 

denied, 459 U.S. 1048, 103 S.Ct. 468 (1982), for the proposition 

that college professors deserve more process than the run-of-themill, Loudermill-type employee. In Skehan, we adhered to our 

earlier decision in Chung v. Park, 514 F.2d 382 (3d Cir.), cert. 

denied, 423 U.S. 948, 96 S.Ct. 364 (1975), where we stated that 

pretermination safeguards due to tenured professors 

 may include: (1) written notice of the 

grounds for termination; (2) disclosure of 

the evidence supporting termination; (3) the 

right to confront and cross-examine adverse 

witnesses; (4) an opportunity to be heard in 

person and to present witnesses and 

documentary evidence; (5) a neutral and 

detached hearing body; and (6) a written 

statement by the fact finders as to the 

evidence relied upon. 

Chung, 514 F.2d at 386 (emphasis added). Nevertheless, neither 

Skehan nor Chung announced that due process required all six of 

these steps in cases involving tenured professors. In both 

cases, we did not reach that issue because the colleges provided 

all six. And neither case based the listed due process 

safeguards on the distinguishing fact that the employees were 

professors and therefore were entitled to extra protection in the 

name of academic freedom. In any event, both cases were decided 
before Loudermill. Inasmuch as Loudermill sets the minimum due 

process pretermination requirements where state procedure also 

provides, as it does here, substantial post-termination 

safeguards, Loudermill defines the minimum due process 

requirements for this case. We further note that in Skehan we 

did not even consider the post-termination remedies, if any, as 

later required by Loudermill. And in Chung, although certain 

post-termination remedies were available, see 514 F.2d at 385 

n.3., we did not consider them in reaching our result. In fact, 

we held that some of the six enumerated steps may be provided 

after termination, and decided that the professor was not 

entitled to a hearing prior to termination. Id. at 387. 

 In considering the interests of the college, we note 

that it, as much as a professor, has a great interest in 

preserving its reputation. Moreover, the college had adopted a 

policy of protecting its students from the types of behavior 

charged against McDaniels. We also need to consider the 

interests of the alleged victim of the sexual harassment. If the 

charges are well founded, the complainant should be protected 

against possible retaliation and threats. 

 In sum, we conclude that only the Loudermill

pretermination requirements were required here. We therefore 

find that the trial court's instructions that due process 

required the college to provide McDaniels with notice and 

explanation of the charges and an opportunity to respond were 

correct. See, e.g., Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 

1064, 1077-78 (3d Cir. 1990) (suspension without pay also 
requires prior notice and hearing); Copeland v. Philadelphia 

Police Dep't, 840 F.2d 1139, 1144-46 (3d Cir. 1988) (suspension 

complied with due process where interview was held which notified 

employee of charges, allowed him to explain, and notified him of 

suspension), cert. denied, 490 U.S. 1004, 109 S.Ct. 1636 (1989); 

Gniotek v. City of Philadelphia, 808 F.2d 241, 244 (3d Cir. 1986) 

(no advance notice of the pretermination hearing is required; 

"Notice is sufficient, (1) if it apprises the vulnerable party of 

the nature of the charges and general evidence against him, and 

(2) if it is timely under the particular circumstances of the 

case."), cert. denied, 481 U.S. 1050, 107 S.Ct. 2183 (1987). 

 The college argues that McDaniels was given notice of 

the hearing and the charges against him, an adequate explanation 

of its evidence, and an adequate opportunity to present his side 

of the story. The college points out that McDaniels had various 

post-termination remedies, including a hearing before the Board 

of Trustees, arbitration, and an appeal to the state court. 

Finally, the college argues that the verdict should be overturned 

because the jury's finding that McDaniels did not have a 

meaningful opportunity to respond cannot be squared with evidence 

indisputably showing that McDaniels in fact did respond to the 

charges. 

 We agree with the college that, in light of the 

undisputed evidence regarding the timing of the relevant events, 

the jury's conclusion that he was not given a meaningful 

opportunity to respond and to tell his side of the case cannot 

stand. McDaniels received adequate notice of the nature of the 
November 27, 1991 meeting, and an explanation of the substance of 

the case against him. Given this background, the time between 

his November 27 meeting with Bryan and McNicholas and the 

December 18 Board meeting was adequate as a matter of law for him 

to make an appropriate pretermination response. Indeed, not only 

did Bryan and McNicholas ask for and receive McDaniels' responses 

during the November 27 meeting, but the correspondence shows that 

he was encouraged to respond further and did so. In fact, 

Bryan's December 9, 1991 letter informed McDaniels that he could 

request a review prior to termination by the president of the 

college. DeCosmo's actions in reading and answering McDaniels' 

letter showed that the college did not refuse him an opportunity 

to respond.5 Finally, the facts that McDaniels did respond to 

the charges during the pretermination meeting by essentially 

denying them and attributing the charges to Federici's emotional 

problems, and by writing to DeCosmo after the meeting, 

conclusively established that, contrary to the verdict, the 

college gave him a meaningful opportunity to respond and to tell 

his side of the story before termination. Thus, if the jury's 

findings as to the first two questions are upheld, its third 

finding cannot stand. 

 In response to the college's arguments, McDaniels 

maintains that he did not receive timely and adequate notice, an 

adequate explanation of the specific allegations, or a meaningful 

 

5. Of course, the fact that they did not accept his responses is 

irrelevant for purposes of determining whether his procedural due 

process rights were offended. 
opportunity to respond, though he does not ask that the verdicts 

adverse to him on the first two issues be set aside. McDaniels 

contends that the notice given him was insufficient because it 

was not provided until the beginning of the pretermination 

meeting. We have held, however, that "advance notice is not 

required." Gniotek, 808 F.2d at 244. In Copeland v. 

Philadelphia Police Dep't, 840 F.2d 1139, 1142-46, we held that 

procedural due process was met where a policeman was told that he 

had tested positive for illegal drug use, was allowed to respond, 

and was told that he would be suspended with intent to dismiss, 

all in the course of a single interview. 

 Second, McDaniels contends that he did not receive 

adequate notice and explanation of the charges against him 

because he was not told or given the exact allegations made by 

Federici. In this regard, it is not disputed that the written 

summary of Federici's allegations was not given or read to 

McDaniels before his termination. We have held, however, that 

pretermination notice of the charges and evidence against an 

employee need not be in great detail as long as it allows the 

employee "the opportunity to determine what facts, if any, within 

his knowledge might be presented in mitigation of or in denial of 

the charges." Gniotek, 808 F.2d at 244; see also Derstein v. 

Kansas, 915 F.2d 1410, 1413 (10th Cir. 1990) (fact that employee 

did not know of all relevant facts and was not given copy of 

investigation transcript is insignificant), cert. denied, 499 

U.S. 937, 111 S.Ct. 1391 (1991). Nor is it disputed that Bryan 

asked McDaniels specific questions about Federici's allegations 
and that McDaniels replied to the questions. The only dispute, 

then, is whether this session put McDaniels on sufficient notice 

of the charges against him so he could respond meaningfully and 

on this point the verdict is unassailable. 

 Thus, given that, for the reasons we already have 

stated, McDaniels received adequate notice and a sufficient 

explanation of the charges against him, it must be concluded that 

he also was given an adequate opportunity to respond. McDaniels 

places great emphasis on his state of mind during the 

pretermination meeting. In essence, he argues that by not giving 

him prior notice of the reason for the meeting, he was placed 

into a state of shock and was unable to respond when Bryan told 

him he was being charged with sexual harassment and might be 

terminated. Though we do not decide the point, this contention 

might have been reasonable if he had been dismissed at the end of 

meeting, which only lasted about an hour. See, e.g., Adams v. 

Sewell, 946 F.2d 757 (11th Cir. 1991). But that was not the case 

here. Several weeks elapsed between the pretermination meeting 

and the Board of Trustees' meeting at which he was terminated. 

Bryan informed him that he could appeal to DeCosmo, which he did. 

We need not determine today what amount of time for "cooling 

off," if any, must be allowed for an employee to respond to 

charges because the facts show that McDaniels had ample time to 

collect himself.6 Indeed, the record demonstrates that he 

 

6. We are not holding that any delay beyond the pretermination 

hearing is required for a response. Thus, this case does not 

cast doubt on the general practice reflected in the cases of 
consulted an attorney7 and sent a written response to DeCosmo 

before the December 18 meeting. 

 Derstein v. Kansas, 915 F.2d 1410, supports our 

conclusion that the elapse of time between the November 27 and 

the December 18 meetings requires that judgment as a matter of 

law be entered in favor of the college. Indeed, Derstein is 

remarkably similar to this case on the facts. In that case the 

public employer received information that a tenured employee was 

sexually harassing other employees. As a result, he was directed 

to appear at a meeting with persons responsible for his 

employment. He was not informed of the purpose of the meeting 

before it started but at the meeting he was advised of the sexual 

harassment charges and given ten days to resign or be terminated. 

He also was told he could appeal. At the end of the ten days the 

employee was given a termination letter which described the 

appeal rights and which advised him of the charges against him. 

He appealed but the appeal board dismissed his appeal as 

frivolous. Following a bench trial, the district court found 

that the employee's pretermination rights had been violated and 

thus it entered judgment for him. 

 The court of appeals reversed. Of particular interest 

here, it emphasized that the employee "was not terminated at the 

(..continued) 

terminating an employee at the pretermination hearing. Our 

opinion simply reflects what happened here. 

7. McDaniels testified that he talked to his union's attorney 

after the pretermination meeting. App. 1095. In addition, his 

letter to Cosmo indicated that he was withholding copies of the 

letter from Federici "on advice of attorney." App. 2253. 
meeting but given ten days to respond" and "[h]e was given ten 

days before termination." Id. at 1413. McDaniels had even more 

time to respond than the employee in Derstein and he did respond 

after the November 27 meeting. 

 Finally, McDaniels argues that the district court 

should have granted him judgment as a matter of law because the 

college's termination procedure violated Pennsylvania Local 

Agency Law. This argument flies in the face of both logic and 

law. His complaint charged that the college violated McDaniels 

federal constitutional rights to procedural due process. The 

question of whether an employee has a property right in continued 

employment is a question of state law. Board of Regents of State 

Colleges v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709. But the 

determination of "'what process is due' . . . is not to be found 

in [state statutes]." Loudermill, 470 U.S. at 541, 105 S.Ct. at 

1493 (citation omitted). Rather, it is a question of federal 

constitutional law. See Vitek v. Jones, 445 U.S. 480, 491, 100 

S.Ct. 1254, 1263 (1980) (minimum requirements of procedural due 

process are "a matter of federal law" and "are not diminished by 

the fact that the State may have specified its own procedures 

that it may deem adequate"). Purported violations of state law 

are not germane here. 

 In reaching our result we take note of Judge Aldisert's 

contentions in his dissent that the college denied McDaniels 

procedural due process of law. He predicates this contention on 

his conclusions that the notice of the pretermination hearing was 

constitutionally inadequate and that McDaniels did not have an 
opportunity to prepare a meaningful defense to the charges. 

Judge Aldisert relies principally on Morton v. Beyer, 822 F.2d 

364 (3d Cir. 1987), in reaching his conclusions. 

 Our opinion to this point adequately responds to Judge 

Aldisert's contentions except that we have not mentioned Morton 

v. Beyer which we thus now address. In Morton v. Beyer at the 

pretermination hearing the employee was suspended without pay. 

822 F.2d at 366. Thus, the proceedings at the hearing were 

critical because unless the employee's response then and there 

convinced the administrators not to take action, and it did not, 

the employee forthwith would suffer a serious adverse employment 

action. Here, unlike the plaintiff in Morton v. Beyer, McDaniels 

does not allege that he was suspended without pay at the 

pretermination hearing. Rather, his complaint is that the 

trustees unlawfully discharged him on December 18, 1991. 

Accordingly, McDaniels quite logically did not sue Bryan and 

McNicholas, he sued the trustees. Therefore, Morton v. Beyer is 

completely distinguishable from this case and it is not 

controlling here. 

 B. Preclusion from Showing that Pretermination

 Hearing was a Sham

 McDaniels also argues that the district court erred in 

refusing to allow him to show at trial that the pretermination 

procedure afforded him was a sham. Essentially, McDaniels' 

theory is that the college administrators never believed 

Federici's allegations to be true. Instead, he charges that they 
pounced on Federici's complaint to get rid of a highly paid 

professor to save money. The district court, relying in part on 

a recent case from the Court of Appeals for the Eleventh Circuit, 

McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (in banc), cert. 

denied, 115 S.Ct. 898 (1995), ruled that even if proven, the fact 

that the proceedings were a sham would be irrelevant to the claim 

that pretermination procedural due process was denied because the 

sufficiency of post-termination protection was not at issue. 

App. 1005-10. 

 Although due process requires an impartial 

decisionmaker before final deprivation of a property interest, 

Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 1670 

(1982), it is not clear that strict impartiality is required at 

each stage of the process. In situations as the one at hand, 

there are two stages, pretermination and post-termination, but 

normally the post-termination proceedings conclusively determine 

the employee's status. The pretermination hearing merely serves 

as "an initial check against mistaken decisions--essentially, a 

determination of whether there are reasonable grounds to believe 

that the charges against the employee are true and support the 

proposed action." Loudermill, 470 U.S. at 545-46, 105 S.Ct. at 

1495 (citations omitted). 

 We have not decided the specific question of whether, 

in the employment termination context, an impartial decisionmaker 

is required at the pretermination hearing. In Rosa v. Resolution 

Trust Corp., 938 F.2d 383, 396-97 (3d. Cir.), cert. denied, 502 

U.S. 981, 112 S.Ct. 582 (1991), however, we touched upon a 
similar issue in another context. Rosa involved a pension plan 

of a bank placed under the conservatorship of the Resolution 

Trust Corporation (the "RTC"). At first, the RTC decided to 

continue the plan and assumed payment obligations. But after two 

contribution payments, the RTC decided to halt contributions and 

it sent out notices that the plan was to be terminated in two 

months. The beneficiaries of the plan sued. Under the Financial 

Institutions Reform and Recovery Enforcement Act, however, 

certain of the plaintiffs' claims for monetary relief had to be 

presented first to the RTC for review. The plaintiffs argued 

that this claims procedure violated due process because the RTC 

was biased as it had a financial interest in the determination of 

their claims. We held that the alleged bias did not violate due 

process because, after exhaustion of the RTC claims procedure, 

the plaintiffs would have the post-deprivation option of 

obtaining a de novo court evaluation of their claims. 938 F.2d 

at 397. Our holding in Rosa is consistent with the approaches 

taken by other circuits in resolving this issue in the employment 

termination context. 

 In McKinney v. Pate, cited by the district court, a 

county official challenged the procedures of his termination, 

alleging that the Board of County Commissioners, who made the 

preliminary decision to terminate his employment, "was 

preordained to find against him, regardless of the evidence." 

McKinney, 20 F.3d at 1561. The court of appeals in banc, stated 

that "[a] demonstration that the decisionmaker was biased . . . 

is not tantamount to a demonstration that there has been a denial 
of procedural due process." McKinney, 20 F.3d at 1562. The 

court reasoned that the employee was entitled also to a posttermination hearing and would not be deprived of due process 

"unless and until the state refuses to provide due process." Id. 

The court held: 

 [I]n the case of an employment termination 

case, 'due process [does not] require the 

state to provide an impartial decisionmaker 

at the pre-termination hearing. The state is 

obligated only to make available "the means 

by which [the employee] can receive redress 

for the deprivations."' Schaper v. City of 

Hunstville, 813 F.2d 709, 715-16 (5th Cir. 

1987) (quoting Parratt v. Taylor, 451 U.S. 

527, 543, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 

420 (1981)) (footnote omitted). 

McKinney, 20 F.3d at 1562. Other court of appeals have come to 

this same conclusion in cases where hearings are provided both 

before and after dismissal. See, e.g., Walker v. City of 

Berkeley, 951 F.2d 182, 184 (9th Cir. 1991) ("failure to provide 

an impartial decisionmaker at the pretermination stage, of 

itself, does not create liability, so long as the decisionmaker 

at the post-termination hearing is impartial"); Duchesne v. 

Williams, 849 F.2d 1004, 1005 (6th Cir. 1988) (in banc) 

(Loudermill does not require a "neutral and impartial 

decisionmaker" at the pretermination hearing but only "a right of 

reply before the official responsible for the discharge"), cert. 

denied, 489 U.S. 1081, 109 S.Ct. 1535 (1989). Likewise, the 

Court of Appeals for the Fifth Circuit reached the same 

conclusion via an application of Parratt v. Taylor, 451 U.S. 527, 

101 S.Ct. 1908 (1981), and held that even if allegations of bias 
and conspiracy on the part of the decisionmaker were true, "the 

state cannot be expected to anticipate such unauthorized and 

corrupt conduct." Schaper v. City of Huntsville, 813 F.2d 709, 

714-16 (5th Cir. 1987). 

 We find these cases convincing. First, as the Supreme 

Court has held, "[t]he constitutional [procedural due process] 

violation actionable under § 1983 is not complete when the 

deprivation occurs; it is not complete unless and until the State 

fails to provide due process." Zinermon v. Burch, 494 U.S. 113, 

126, 110 S.Ct. 975, 983 (1990). The Zinermon Court held that 

part of the process that the State may offer to avoid 

constitutional violations is a remedy for erroneous deprivations. 

Id. Thus, a discharged employee cannot claim in federal court 

that he has been denied due process because his pretermination 

hearing was held by a biased individual where he has not taken 

advantage of his right to a post-deprivation hearing before an 

impartial tribunal that can rectify any possible wrong committed 

by the initial decisionmaker. 

 We also find most persuasive the application of Parratt 

v. Taylor, 451 U.S. at 527, 101 S.Ct. 1908, to claims that 

pretermination decisionmakers were not impartial. In Parratt v. 

Taylor, a prisoner claimed violation of his procedural due 

process rights because the mail-ordered hobby kits for which he 

had paid disappeared after their delivery to his prison. The 

Supreme Court first recognized that "either the necessity of 

quick action by the State or the impracticality of providing any 

meaningful predeprivation process, when coupled with the 
availability of some meaningful means by which to assess the 

propriety of the State's action at some time after the initial 

taking, can satisfy the requirements of procedural due process." 

Parratt v. Taylor, 451 U.S. at 539, 101 S.Ct. at 1915 (footnote 

omitted). The Court held that the prisoner failed to make out a 

procedural due process claim. The Court reasoned that the nature 

of this deprivation, "a tortious loss [resulting from] a random 

and unauthorized act by a state employee," makes it difficult if 

not impossible for the State to hold a meaningful hearing before 

the deprivation. Id. at 541, 101 S.Ct. at 1916. The Court held 

that in such instances post-deprivation remedies such as tort 

laws are adequate. 

 This reasoning applies equally well in the employment 

termination context. Usually, an employment termination decision 

is made initially by the employee's direct supervisor or someone 

working in the same organization as the employee -- a sensible 

approach given that such person often is already familiar with 

the employee's abilities and shortcomings as well as the needs 

and interests of the employer organization. Yet, these 

individuals are also likely targets for claims of bias or 

improper motive simply because of their positions. For example, 

personality discord may lead to charges that a direct supervisor 

was biased. Or, as here, budget squeezes may lead to charges 

that the motivation for the dismissal was to trim the budget. 

While these charges may have merit in certain cases, to require 

that the state ensure an impartial pretermination hearing in 

every instance would as a practical matter require that 
termination decisions initially be made by an outside party 

rather than the employer as charges of bias always could be made 

following an in-house discharge. Not only is this procedure 

unduly cumbersome, but it also may be unreasonably invasive for 

the employee, who may want to keep the circumstances of his 

discharge private. On the whole, we do not think that such 

excessive pretermination precaution is necessary where the state 

provides a neutral tribunal at the post-termination stage that 

can resolve charges of improper motives. 

 Here, the parties agree that the college is a "local 

agency" subject to Pennsylvania Local Agency Law.8 Under 

sections 752 and 754 of the Local Agency Law, 2 Pa. Cons. Stat. 

Ann. §§ 752 & 754 (Supp. 1994), McDaniels had the right to appeal 

the college's decision to the state court. See Monaghan v. Board 

of Sch. Directors of Reading Sch. Dist., 618 A.2d 1239, 1241 (Pa. 

Commw. Ct. 1992). Under section 754, a court may hold a de novo

hearing "[i]n the event a full and complete record of the 

proceedings before the local agency was not made." Moreover, the 

court may modify or set aside an agency decision if it finds 

violations of the employee's constitutional rights, an error of 

law, or that necessary findings of fact were not supported by 

substantial evidence. Id.; see also Coyle v. Middle Bucks Area 

Vocational Technical Sch., 654 A.2d 15, 16 (Pa. Commw. Ct. 1994); 

Springfield Sch. Dist. v. Shellem, 328 A.2d 535, 537-38 (Pa. 

 

8. Pennsylvania statute defines "local agency" as "[a] 

government agency other than a Commonwealth agency." 2 Pa. Ann. 

Stat. Ann. § 101 (Supp. 1994). 
Commw. Ct. 1974). Clearly then, even aside from McDaniels' 

options in his union contract, which procedures he in fact 

initiated, the state offered him sufficient process to protect 

his property rights. 

 C. Denial of New Trial on Non-Economic Damages

 As we find that the college did not violate McDaniels' 

procedural due process rights, we need not reach the question 

raised on his cross-appeal as to whether the trial court erred in 

denying his motion for a new trial on non-economic damages. 

 D. Dismissal of Individual Defendants

 In a memorandum opinion, the district court noted that 

it had dismissed, sua sponte and without objection, the case as 

to the individual defendants because they had nothing to do with 

the pretermination events leading to McDaniels' discharge. There 

has been some confusion as to the resolution of this issue 

because McDaniels states that he did not agree to the dismissal 

and an order of dismissal was not entered until June 28, 1994, 

which was several months after the dismissal at the aborted 

trial. When the case was retried, McDaniels' attorney brought up 

this point and the court adhered to its ruling. App. 703-04. In 

his cross-appeal, McDaniels challenges this dismissal. 

 We exercise plenary review over the district court's 

dismissal of the individual defendants. Alnor Check Cashing v. 

Katz, 11 F.3d 27, 29 (3d Cir. 1993). We have some question as to 

whether the district court's reasoning was correct as the 
trustees actually terminated McDaniels' employment. However, in 

light of our conclusion that the college did not violate 

McDaniels' rights to procedural due process, we will affirm the 

dismissal of the individual defendants. Inasmuch as the 

pretermination procedures did not violate McDaniels' rights, the 

individual defendants could not be liable. 

 V. CONCLUSION

 For the above reasons, we will reverse the order 

denying the college's post-trial motion for judgment as a matter 

of law and will affirm the trial court's dismissal of the case as 

to the individual defendants. We do not address the college's 

appeal from the order denying its motion made at the end of the 

McDaniels' case for a judgment as a matter of law as it is moot. 

In sum, the consequence of our opinion is that this litigation is 

terminated in the federal courts with judgments in favor of all 

the defendants. 

 McDANIELS v. FLICK

 No. 94-1838 & 94-1935

ALDISERT, Circuit Judge, Dissenting 

 Fundamental fairness is the hallmark of the procedural 

protections afforded by the Due Process Clause. Here we must 

decide whether the pretermination procedures of Delaware County 

Community College comported with the requirements of due process. 
In my view they did not. I would affirm the judgment of the 

district court. Accordingly, I dissent. 

 Prior to termination, a public employee with a property 

interest in continued employment must be afforded "a 

pretermination opportunity to respond, coupled with posttermination administrative [or judicial] procedures." Cleveland 

Bd. of Educ. v. Loudermill, 470 U.S. 532, 547-48 (1985). To 

ensure that the pretermination hearing is a meaningful one, the 

employee "is entitled to oral or written notice of the charges 

against him, an explanation of the employer's evidence, and an 

opportunity to present his side of the story." Id. at 546. 

 In this case, Professor McDaniels was not provided 

adequate notice of the subject or purpose of the November 27, 

1991 meeting. He was told only that he should bring his current 

gradebook and that it related to "a student problem." App. Vol. 

II at 790-91, 868-70. To be sure, advance notice is not a per se

requirement of due process. Gniotek v. City of Philadelphia, 808 

F.2d 242, 244 (3d Cir. 1986). Rather, as the majority correctly 

noted, "[n]otice is sufficient, 1) if it apprises the vulnerable 

party of the nature of the charges and general evidence against 

him, and 2) if it is timely under the particular circumstances of 

the case." Id. at 244. Thus, although advance notice is not 

required, "'the timing and content of notice ... will depend on 

appropriate accommodation of the competing interests involved.'" 

Id. (quoting Goss v. Lopez, 419 U.S. 565, 579 (1975)). I 

conclude that the "particular circumstances" in this case 
required some form of advance notice. See Morton v. Beyer, 822 

F.2d 364, 369 (3d Cir. 1987). 

 In Morton v. Beyer, a corrections sergeant at a state 

prison was summoned to a pretermination hearing six months after 

the putative misconduct, in that case inmate abuse, although he 

was aware that an internal affairs investigation was initiated 

within a couple of days of the alleged incident. On the morning 

of the hearing, the public employee received "vague" notice that 

the upcoming hearing had something to do with "a general 

allegation of inmate abuse." 822 F.2d at 370. At the hearing 

itself, the employee was accompanied by his union representative 

and was provided a packet of materials containing the various 

investigative reports of the incident for his review and comment, 

to which the employee declined to respond at the advice of his 

representative. We concluded: "On the undisputed facts of this 

case, [the employee] was not afforded timely notice of the nature 

of the charges or the general evidence against him." Id. at 371. 

 This case assumes a fortiori proportions. First, 

although Professor McDaniels also was summoned months after the 

alleged incident, he was never aware that he was being 

investigated at any time prior to the pretermination hearing. 

Second, McDaniels received notice more vague than that in Morton 

v. Beyer: He was told less than two hours before the meeting 

only that he should bring his current gradebook and that it 

related to "a student problem." App. Vol. II at 790-91, 868-70. 

He was not informed that the upcoming meeting was intended to 

serve as a pretermination hearing or that it related to a student 
complaint of sexual harassment. Amazingly, this lack of notice 

was in keeping with the college's policy that the more serious 

the alleged incident, the less notice and information is 

provided. App. Vol. II at 802-03. Third, unlike the public 

employee in Morton v. Beyer, McDaniels was not accompanied by a 

representative and was not afforded the opportunity to review the 

investigative report or evidence against him, specifically a 

three-page hand-written summary composed by Bryan and signed by 

the complaining student. Fourth, as part of the pretermination 

procedure the employee in Morton v. Beyer was provided a 

departmental hearing after the initial hearing, 822 F.2d at 367 

n.1 & n.2, whereas Professor McDaniels, notwithstanding the 

availability of what the majority characterize as "posttermination rights," was refused further pretermination review or 

investigation when, at the suggestion of Bryan, he filed a 

written request for this additional safeguard from the president 

of the college. 

 Although I am satisfied that McDaniels' pretermination 

hearing afforded him, to some degree, an impromptu opportunity to 

hear some of the college's evidence and present his side of the 

story, clearly he was unable to mount a defense equivalent to the 

studied and prepared presentation levelled against him: 

 In affirming the conclusion of the district 

court that [McDaniels] likely received an 

inadequate Loudermill hearing, we emphasize 

that we simply hold that, on the facts of 

this case, prior notice of the nature of the 

charges against [McDaniels] was required. 

Particularly in light of the significant 

lapse in time between the alleged improper 

conduct and the hearing in [Bryan's] office, 
[McDaniels] should have been provided 

sufficient time, at the very least, to 

recount the facts in his own mind and thus to 

prepare himself to demonstrate to [Bryan and 

McNicholas] that reasonable grounds to 

believe that the charges were true did not 

exist. 

Morton v. Beyer, 822 F.2d at 371 n. 11. 

 The majority and I seem to agree that it is difficult 

to square the jury's finding that Professor McDaniels was 

afforded constitutionally adequate notice of the pretermination 

hearing and the charges against him with its finding that he was 

not afforded a constitutionally adequate opportunity to respond. 

With such an agreement is an implicit acknowledgement that notice 

and opportunity to be heard are inextricably bound. 

 Subsumed in the due process requirement of notice is 

the concept that the recipient will be afforded some opportunity 

to prepare a meaningful defense. In this case the fact that 

notice of the pretermination meeting was given, as found by the 

jury, was nevertheless insufficient to permit Professor McDaniels 

to defend against a serious charge of sexual harassment 

intentionally flung upon him out of the blue, as also found by 

the jury. Under my view of due process protection, notice of a 

meeting is meaningless unless the vulnerable party is permitted a 

realistic opportunity to mount a defense and respond accordingly. 

 To be sure, the jury found that Professor McDaniels 

received notice of the meeting. That is a question of fact which 

I will not disturb on review. As a matter of constitutional law, 

however, I believe that the notice failed to meet the 
constitutional requirements of procedural due process. That is a 

question for the court and not for the jury. 

 Accordingly, I dissent.